Or, the claimant may apply to be made a party defendant under Code Civ. Pro., § 452,60 and if taken from the claimant, may maintain replevin or conversion against the sheriff. 61 If the sheriff takes the chattels from the possession of the third person, the sureties on plaintiff's undertaking given upon the requisition, are not liable therefor.62 I. PLAINTIFF'S PROCEEDINGS TO REPLEVY. FORM No. 793. Affidavit in replevin (claim and delivery). [Title of court and action.] [Venue.] A. B., being duly sworn, says: I. That he is the plaintiff [or, one of the plaintiffs agentor, attorney of the plaintiffs] in this action. II. That he [or, said plaintiff] is [if summons has been served, say, and at the time of the commencement of this action," was] the owner [or if several, are, and were the owners], and lawfully entitled to the immediate possession of the following described chattels [or, is lawfully entitled to the immediate possession of the following described personal property, claimed in this action, to wit [designating them, thus:] 66 One rosewood upright piano, made by Steinway & Sons, and numbered [or, now in the house of the defendant Y. Z. at ] of the value of $40067 [and if chattels in bulk, state weight, measurement, or other quantity].68 60 See Standard Sewing Machine Co. r. Heyman, 25 Misc. 429, 54 N. Y. Supp. 936. He cannot be brought in against his will. Goldstein v. Shapiro, 85 App. Div. 83, 82 N. Y. Supp. 1038. 61 Pracht v. Gunn, 69 App. Div. 396, 74 N. Y. Supp. 991; Standard Sewing Machine Co. v. Heyman, 25 Misc. 429, 54 N. Y. Supp. 936. Compare, however, McCarthy v. Ockerman, 154 N. Y. 565, where the chattels were replevied from the possession of the defendant. 62 Leonard r. Buttling, 19 Misc. 219; 13 App. Div. 179, 43 N. Y. Supp. 387. 63 If made by agent or attorney, indicate in the allegations those made on information and belief. N. Y. Code Civ. Pro., § 1712. 64 Under N. Y. Code Civ. Pro., § 1696. it seems to be enough in an affidavit made after service of summons to say that plaintiff was enti tled, etc., at the commencement of the action without alleging a present right. 65 A sufficient statement without stating facts showing ownership. Burns v. Robbins, 1 Code Rep. 62. 66 See paragraph 5, p. 1149, supra, as to requirements. 67 As to stating value, see paragraph 2, p. 1147. 68 N. Y. Code Civ. Pro., § 1657. [If plaintiff seeks to recover all the chattels in a certain place, it is sufficient to state as follows: All the dry goods, notions, carpets, wall paper, crockery, boots and shoes, groceries, fixtures, safe, and personal effects of the firm of in the premises No. in the city of .]69 [If plaintiff is not owner, but merely claims a right of posses-· sion, state the facts with respect to it, for instance, thus:] 71 [Where he claims under a special agreement.] That the plaintiff is entitled to the immediate possession of said chattels, by virtue of an agreement between him and the above-named defendant Y. Z., of which the following is a copy [inserting it]." [Or, where he claims as pledgee: That said goods were delivered to said plaintiff by as a security for the payment of dollars; and that said defendant, unknown to said plaintiff, took said goods from plaintiff's possession, against his will, and now refuses to return the same; that the said sum of money is still due and unpaid, and plaintiff is still entitled to said goods as his security therefor, and that to the best of deponent's information and belief said. is the owner of said goods or was such owner at the time of their said delivery to plaintiff.]72 [Or, where he claims as lessee: which goods said plaintiff hired of said defendant on the term of months, and paid him therefor the sum of dollars; and that said term has not yet expired, and said defendant wrongfully retook possession of said goods.] day of 19, for the [Or, where he claims as bailee for hire: that said goods were deposited with plaintiff for storage, by their owner, M. N., for months, on an agreement by M. N. to pay the plaintiff storage therefor, which storage is worth dollars; and they have been taken from the plaintiff without his consent, and without payment of said storage.]73 74 III. That said chattels are [if summons has been served, say, and at the time of the commencement of this action, were"] wrongfully detained by said Y. Z.78 69 Sustained in McCarthy v. Ockerman, 154 N. Y. 565. 70 Required by N. Y. Code Civ. Pro., § 1693, subd. 1. 71 The writing should be set out. Depew v. Leal, 2 Abb. Pr. 131. 72 See Lange v. Lewi, 58 N. Y. Super. Ct. 265, 11 N. Y. Supp. 202. 73 See Lange v. Lewi, supra. 74 Omission to say in terms that the goods described are those which it is desired to replevy, held not to vitiate. Brown r. Poland, 54 Conn. 313. 7 Atl. Rep. 719. 75 See note 64 on p. 1152. 76 As to amending by joining another person not named in the affidavit, see Bardwell r. Stubbert, 17 Nebr. 485, 23 N. W. Rep. 344, holding such amendment not allowable. It would be otherwise, however, if such person or party was brought in IV. That the alleged cause of the detention thereof, according to this deponent's best knowledge, information and belief, is as follows [stating it, for instance, thus: that the defendant claims to hold them under an alleged assignment from one M. N.—or, claims to be the owner of said chattels.] [Or, where they are held under levy: that defendant claiming to be sheriff of has seized the same under an alleged executionor, attachment-against the property of .] 78 [Or, where possession was obtained by fraud: that said defendant claims to have purchased the same from said plaintiff; but said pretended purchase was procured by fraud on the part of said defendant in representing himself to be solvent, and worth dollars, when in fact he was insolvent, and wholly unable to pay his debts, and well knew the fact so to be, and made such representations to said plaintiff with intent to deceive and defraud him; and relying thereon said plaintiff parted with possession of said goods; that plaintiff has elected to rescind said sale because of such fraud.] [Or, where they are held under pledge by one having no title: that the said defendant Y. Z. claims the right to retain possession thereof as security for the payment of a certain sum of money alleged to have been loaned to one M. N. by defendant upon a pledge of said chattels with said defendant by said M. N., although in fact said M. N. was not the owner thereof, and had no right to pledge any of them.] V. That said chattels have not been taken by virtue of a warrant against the plaintiff for the collection of a tax, assessment or fine issued in pursuance of a statute of the State or of the United States [or if taken under color of such a warrant, say, except as because of claiming a right derived, pendente lite, from an original defendant. 77 Omission of the word "best "held not fatal. Depew v. Leal, 2 Abb. Pr. 131. An agent or attorney may use the statutory language, and need not set the source of knowledge on this particular allegation. See Sloan r. Impl. Dealers Mfg. Co., 25 Misc. 451, 55 N. Y. Supp. 558. 78 Sommer v. Greenberg, 60 N. Y. St. Rep. 852. 79 There are other restrictions which need not be negatived in the affidavit. Thus property in possession of a mar shal of the United States court, cannot be taken in replevin by process from a State court. Patterson r. Mater, 26 Fed. Rep. 31; Freeman r. Howe, 24 How. (U. S.) 450; 1 Abb. U. S. Pr. 64, 69 (questioned in Wells on Replev. 154, §§ 275-282). As to right to maintain replevin against an officer who has taken property by virtue of a writ, see note in 75 Am. Dec. 646. See, also, Troy & Lansingb. R. R. Co. r. Kane, 72 N. Y. 614, and cases collected in Wells on Replev. 124. § 244, etc. hereinafter stated — and state facts showing either that the taking was unlawful by reason of defects in the process, or other causes specified, or state facts which have subsequently occurred by reason of which the detention is unlawful.80 See Form 795]. VI. That said chattels have not been seized by virtue of an execution or warrant of attachments against the property of the plaintiff, or of any other person, from or through whom the plaintiff has derived title to said chattels, or any part thereof, since the seizure thereof [or if they have been so seized, say, except as in hereinafter stated *- and state the seizure and its unlawfulness, and set forth the facts on which exemption from the seizure is claimed, or specify facts which have subsequently occurred by reason of which the detention is unlawful. See Form 795]. VII. That the actual value of [each of] said chattels is as dollars.s 82 above stated, amounting in the aggregate to VIII. That said plaintiff has brought this action in this court against said defendant Y. Z. to recover the possession of said chattels. That said summons has been personally served, and no answer has been served by said defendant, and his time to answer has not expired [or if in default for not appearing or pleading, has fully expired, but final judgment has not been entered or, that said summons has not yet been served]. [Jurat.] [Signature.] FORM No. 794. Affidavit made by agent or attorney.83 [The following additions should be made to the preceding Form when made by the attorney or agent of the party:] [If all the material facts are personally known:] That all the facts alleged herein are within deponent's personal knowledge; so Plaintiff's property was seized under a warrant to collect a school tax; the affidavit stated that the taking and detention of plaintiff's property was unlawful by reason of the following defects in the process, to wit: "The said tax contains moneys to be raised thereby which were not properly and justly chargeable to said district." Held, wholly insufficient to 83 Under Code Civ. Pro., § 1712. that deponent was the agent for the plaintiff in and had personal charge of all of the transactions involved in this action.s 84 [If some of the material facts are based upon information and belief, give reason for absence of party's affidavit, and disclose grounds of deponent's belief, as:] That the plaintiff is not within the county of where his attorney resides, [or has his office,] but said plaintiff is now [state where]. That the sources of deponent's information and grounds of his belief are [state in general form.]5 FORM No. 795. Affidavit in replevin where exempt property has been seized on execution.86 [Insert in Form 793 at the *:] That said property is [a part of plaintiff's necessary household furniture, the value of all of which is and at the time of levy was in the aggregate less than Lone hundred and fifty] dollars, besides the articles specifically declared exempt by the statutes of this State; and the plaintiff is a householder, supporting a family consisting of [his wife and one child]; wherefore, said property is exempt by law from seizure under execution, as deponent is advised by his counsel and verily believes. [Or, That plaintiff is a householder, and by occupation - a carpenter and master builder; and that said chattels are the working tools and implements of plaintiff, necessary to the carrying on of his said business-or, that deponent is a physician, and the said horse and carriage are necessary to enable him to carry on the practice of his profession; wherefore, said property is exempt by statute from seizure under execution, as deponent is advised by his counsel and verily believes.] 84 The requirement in attachment that, in addition to the agent's oath of knowledge, he must disclose how he obtained the knowledge, may not apply upon replevin proceedings. See Sloan r. Impl. Dealers Mfg. Co., post. 85 The affiant is not required to set forth the details of what the information is. Sloan . Impl. Dealers Mfg. Co., 25 Misc. 451, 55 N. Y. Supp. 558. The disclosure should be similar to that in the verification of pleadings. 86 See N. Y. Code Civ. Pro., §§ 1390, 1391. Under the former statute requiring the affidavit to "show" exemption, the same rule that the facts on which the exemption depends should be stated was followed. Spalding . Spalding, 3 How. Pr. 297, 1 Code Rep. 64. Although this, perhaps, was not essential. Roberts v. Willard, id. 100. |